The Duke Project on Custom and Law

Duke Law faculty are undertaking a new project that aims to engage the Law School community and the legal academy at large in a yearlong conversation about the relationship between custom and law.

“The relationship between custom and law has both perplexed and intrigued legal scholars through the ages,” said Professor Curtis Bradley, who is directing the project. “It is present in almost every legal system and implicates almost every subject area of the law. The relationship also takes a wide variety of forms, with custom sometimes informing the law, at other times resisting the law, and in some instances actually being the law.”

The Duke Project on Custom and Law will run throughout the 2011-12 academic year and will involve scholarly presentations, a symposium, a readings seminar, journal publications, and other events and programs designed to address the topic from a wide range of perspectives.

Bradley, the Richard A. Horvitz Professor of Law and Professor of Public Policy Studies, cites a number of examples of the relationship at the heart of the project: Tort law considers custom in the industry in determining the standard of care. Property law draws from customary practices in developing rules regarding ownership and use. Contract law fills in the gaps of commitments based on customary practices. Custom has a potentially significant influence on what is considered “fair use” in intellectual property law. Constitutional law is informed by the customary operations of government. One of the two major forms of international law is customary rather than codified. An understanding of the unwritten institutional customs of legal actors (such as courts and prosecutors’ offices) is often essential to an appreciation of how they operate.

By examining these and related subjects, Bradley hopes the project can both shed new light on the historical relationships between custom and law and advance a scholarly understanding of how custom can support or influence the development of law.

Another goal of the Duke Project on Custom and Law is to engage the Duke Law faculty as well as others from the Duke community in a focused, yearlong scholarly dialogue that draws on the university’s interdisciplinary strengths.

“We want to take advantage of the extraordinary scholarly depth of both our law faculty and the faculty of Duke University,” Bradley said. “This sort of project allows us to capitalize on our interdisciplinarity and benefit from the strength of Duke’s programs in law, policy, history, political science, anthropology, and more. It also will allow us to engage on a more deeply scholarly level than is usually possible when we are all working on separate research.”

The project will begin this summer with informal discussions among the faculty about some of the important published works on custom, from both law and other disciplines (a schedule of summer reading sessions appears below and will be updated as events are scheduled). During the school year, the project will sponsor a workshop series in which scholars from around the country will present work relating to the topic. Scheduled presenters include:

Robert Cooter, Herman F. Selvin Professor of Law at the University of California at Berkeley;

Robert Ellickson, the Walter E. Meyer Professor of Property and Urban Law at Yale University;

Emily Kadens, the Baker and Botts Professor in Law at the University of Texas, who will present the first workshop with a discussion of her paper relating to medieval merchant custom;

Jody Kraus, the Robert E. Scott Distinguished Professor of Law at the University of Virginia;

Richard McAdams, Professor of Law at the University of Chicago;

Annelise Riles, the Jack G. Clarke Professor of Far East Legal Studies and Professor of Anthropology at Cornell University;

Carol Rose, the Gordon Bradford Tweedy Professor Emeritus of Law and Organization and Professorial Lecturer in Law at Yale University and the Lohse Chair in Water and Natural Resources at the James E. Rogers College of Law at the University of Arizona.

Some Duke scholars also will begin writing and discussing their own papers on the topic of custom and the law. Their work will be presented at a symposium and eventually published in one of Duke’s law journals. Duke students will have the opportunity to participate in a yearlong readings seminar on the topic and to attend some of the workshops and the symposium.

“We think this will be an opportunity for the entire Law School to make a scholarly contribution that goes beyond individual work and represents the collective strengths of Duke Law’s diverse and interdisciplinary community,” Bradley said. “We’ve received very positive feedback so far on the project, both from within our faculty and from others around the country. We’re very excited to see how it will evolve over the course of the coming year.”

For additional information on the project, please contact Professor Curtis Bradley at cbradley@law.duke.edu.

Summer Reading Sessions

May 3: Richard Craswell, Do Trade Customs Exist?, in The Jurisprudential Foundations of Corporate and Commercial Law (Jody S. Kraus & Steven D. Walt eds., 2000); Frederick Schauer, Pitfalls in the Interpretation of Customary Law, in The Nature of Customary Law (Amanda Perreau-Saussine & James Bernard Murphy eds., 2007)

May 24: Richard A. Epstein, The Path to the T.J. Hooper: The Theory and History of Custom in the Law of Tort, 21 J. Leg. Stud. 1 (1992).

June 9: Gerald J. Postema (presenter), Custom in International Law: A Normative Practice Account, in The Nature of Customary Law (Amanda Perreau-Saussine & James Bernard Murphy eds., 2007).